White House Drafting Executive Order to Allow Indefinite Detention; Move Would Bypass Congress

By Dafna Linzer and Peter Finn, ProPublica. Posted June 30, 2009.

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

White House spokesman Ben LaBolt did not directly respond to questions about an executive order but said the administration would address the cases of Guantanamo detainees in a manner "consistent with the national security interests of the United States and the interests of justice."

One administration official suggested the White House was already trying to build support for an executive order.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

The Justice Department has declined comment on the prospects for a long-term detention system while internal reviews of Guantanamo detainees are underway. The reviews are expected to be completed by July 21.

In a May speech, President Obama broached the need for a system of long-term detention and suggested that it would include congressional and judicial oversight. "We must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the Executive Branch decide alone," the president said.

Some of Obama's top legal advisers, along with a handful of influential Republican and Democratic lawmakers, have pushed for the creation of a "national security court" to supervise the incarceration of detainees deemed too dangerous to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away from that option, at least for now, because legislation establishing a special court would be both difficult to pass and likely to fracture Obama's own party. These officials, as well as others interviewed for this story, spoke on the condition of anonymity because they were not authorized to speak publicly about internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantanamo. In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases and continued detention.

Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide and one was moved to New York to face terrorism charges in federal court.

Administration officials said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khaled Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks on the United States.

The other half, the officials said, present the greatest difficulty because these detainees cannot be prosecuted either in federal court or military commissions. In many cases, the evidence against them is classified, has been provided by foreign intelligence services, or has been tainted by the Bush administration's use of harsh interrogation techniques.

Attorney General Eric Holder agreed with an assessment offered during congressional testimony this month that fewer than 25 percent of the detainees would be charged in criminal courts and that 50 others have been approved for transfer or release. One official said the administration is still hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.

See more stories tagged with: guantanamo, barack obama, george w. bush, russ feingold, military commissions, eric holder, indefinite detention, ben labolt, national security court, khaled sheik mohammed

Dafna Linzer was a national security reporter for The Washington Post, covering intelligence and nonproliferation, from 2004 to 2008.

Peter Finn is the Moscow correspondent for The Washington Post.

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